Does Capital Punishment Amount to Cruel, Inhuman and Degrading Punishment: A Reflection on Botswana and South Africa

Nico P. Swartz

Abstract

In a recent debate over the radio in Botswana on the death penalty, the majority of callers seemed to be in favour of the death penalty. The purpose of this paper is to clarify that capital punishment is cruel, inhuman and degrading contrary to the norms set out in the Convention against Torture, the optional protocol to the United Nations Covenant on Civil and Political Rights (ICCPR) on the abolition of the death penalty. The methodology of this paper is to invoke the South African sentiment and international treaties to buttress the notion that death penalty amounts to the taking of a human life and is tantamount to the infringement of basic human right to life as enshrined in both the Botswana and the South African Constitution. South Africa heeded to this call and abolished capital punishment, whereas Botswana not only includes capital punishment in its constitution, but couched this form of punishment in a mandatory fashion. In the Botswana case of Ntesang v State however, the decision of execution by hanging attests to the cruelty and inhumanity of capital punishment. Under the influence of international treaties and conventions the particular judge in this case invited the state to outlaw the death penalty. The judge warned though, that the judiciary cannot rewrite the Constitution. The legislature can do it as it is the arm of government vested with law making powers. In order to materialize such a venture, Botswana must also take into account international treaties and conventions in the interpretation of its domestic legislation. Although Botswana does that, as seen in the light of section 24 of the Interpretations Act and the Unity Dow-case, it is done in a cursorily fashion. For this reason, Botswana has also to consider the South African stand on the death penalty. South African case law is not binding but merely persuasive. The South African position is the most appropriate model of comparison, seeing from the fact that capital punishment was also exerted during the apart-regime. The subsequent abolishment of capital under the new regime must served as a harbinger for Botswana to follow in the footsteps of its neigbour (South Africa).

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